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2 l*l[ FIS No. 7..t.. f, [, "9...,..,..,,/Secy' (TA) 3rY No. I 3018/6/2013 -Esu.(L) Govemment of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training {. ri rl. Date...7..;.*;.i4..."' -W 7r JNU Old Campus, New Delhi Dated 29 January, OFFICE MEMORANDUM Subject: Writ Petition No.844/2014 in the High Court of Delhi filed by Ms. Rama Pandey, Teacher,KendriyaVidyalayaV/sUoI&others_reg. The undersigned is directed to enclose herewith Hon'ble High Court of Delhi's Order dated l7m July,2015 in the Writ Petition No.844/2014 in the High Court of Delhi filed by Ms. Rama Pandey, Teacher, Kendriya Vidyalaya V/s Uol & Others.. AII Ministries/Departments are advised to give wide publicity of its contents to the concerned officers. 3. This issues with the approval of Secretary (P). As per standard mailine list A/ (Sandeep Saxena) Under Secretary to the Govt. of India Copy to:- NIC, DOPT - for uploading on the website Eo1. a,.e PJ-Lo'&s s", \t\jvr,d{ u+98sv)? d.{ t \, lr{ 5 \. h 'bib ru ^\l t\,,6 Qr L p1\/ u IY r-l

3 Rama Pandey vs Union Ot lndia & Ors. on 17 July,2O.ts Delhi High Court Rama Pandey vs Union Of India & Ors. on t7 July,2ol1 Author: RajivShakdher '+ IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved "_. on: Judgment detivered on: + l./p(c) No. 844/20L4 72.L2.20L4 t7.o7.20ls RAMA PANDEY PETITIONER Versus UNION OF INDIA & ORS. RESPONDENTS Advocates who appeared in this case: For the Petitioner: Mr Sunil Kumar and Mr Rahul Sharma, Advocates For the Respondents: Mr Jasmeet Singh, CGSC with Ms Kritika Mehra, Adv. for R-1, Mr S. Rajappa & Dr. puran Chand, Advs. for R_ Z & 3. CORAM: HON'BLE MR. JUSTICE RAIIV SHAKDHER RA]IV SHAKDHER, J FACTS r A synthesis of science and divinity (at least for those who believe in it), led to the culmination of the petitioner's desire for a child. Married, on 18.o1.1998, to one Sh. Atul pandey, the petitioner,s, wish to have a child was fulfilled on o9.o2.2o13, albeit via the surrogacy route. Her bundle of joy comprised of twins, who were born on the aforementioned date, at a city hospital. r'1 To effecfuate the aforesaid purpose, the petitioner had entered into an arrangement with, one, Ms Aarti, wife of Mr Surya Narayan (hereafter referred to as the surrogate mother). The arrangement required the surrogate mother to bear a child by employing the In-Vitro Fertilization (MF) methodolory. The methodolory used and agreed upon required the genetic father to fertilize, In-Vitro, tle ovum supplied by a designated donor. The resultant embryo *a. then required to be transferred antl implanted in the surrogate mother. This arraagement, along with other terms and conditions, which included rights and obligations of the commissioning parents, as also those of the surrogate mother, were reduced to a written agreement dated o8.o8.zorz (in short the surrogacy agreement). z' The fact that the surrogacy agreement reached fruition, is exemplified by the birth of twins, as indicated above, on This far, the petitioner was happy; her unhappiness, however, commenced with rejection of her application dated o6.o6.zo13, for grant of maternity and Child Care [eave (CCL)' By this application, the petitioner sought r8o days maternity leave and 3 months ccl-. This application was addressed to respondent no.g, wittr a copy to respondent no.z. lndian Kanoon - http//lndlankanoon.org/doc./ t 5/

4 Rama Pandey vs Unlon Of lndia & Ors. on 17 July, Respondent no.3 vide a covering letter of even date, i.e., , forwarded the petitioner's application to respondent no.z, along with the requisite documents i.e. the surrogacy agreement and the bir*r certificate of the children, Respondent no.g, sought clarification with regard to the request made by the petitioner for sanctioning the maternity leave. A perusal of the covering letter would show that the leave sought for the purposes of child care was not being objected to. A doubt, was raised only qua materuityleave. z.z Evidently, vid.e communication dated ro.ro.zo13, petitioner's request was rejected by respondent no.3, based on, inputs received from respondent no,z vide two communications ilated o4.og.2olg and 19.o9.zo13. The first communication appears to have been sent by Kendriya Vidyalaya Sangathan (KVS), [Headquarters], while the second was, evidently, sent by K"\/S (D.R.)' These communications, though, are not on record 2.3 In sum, it was conveyed to the petitioner that there was no provision for grant of maternity leave in cases where the surrogacy route is adopted. The petitioner was, however, informed that the CCL could be sanctioned, in her favour, under RuIe 43-d which was applicable to "female government seryants". It now transpires ttrat reference ought to have been made to Rule 43 and not Rule 4B-A; a fact which was confirmed by the counsel for respondent no,2 and In the background of the aforesaid stand, the petitioner was requested to submit au application for CCL, in case she was desirous of avaijing leave on that account. 3. The petitioner being aggrieved, approached this court by way of the instant petition, fiied, under Article zz6 of the Constitution. Notice on this limited aspect was issued in the writ petition on os.o2.2o14. Though counsels for parties were asked to file written submissions; except for respondent no. 2 none of the other parties filed written submissions in the matter. Counsels for respondents have not filed any counter affidavit in the matter. The reason for that, perhaps would be, that the facts in the matter are not in dispute. The issue raised in the writ petition is, a pure question of law, 4. I may only note that on 1o.o2.2o15, respondents placed before this court an office memoranduut dated o9.oz.zo15, issued by the Ministry of Personnel, Public Grievances, Petrsiotrs, Deparboent of Personnel and Training (DoPT), Govt. of India which, in furn, relied upon the office memora:rdum dated o9.or,zor5, issued by the Ministry of Human Resoruces and Development. 4.r The stand taken, based on the said office memorandums, was that, there was no provisiou for grant of maternity leave to female employees, who took recourse to the surrogacy route for procreating a child. Furthermore, it was indicated that for grant of "adoption leave", a valid atloption had to be in place. 4.2 Having said so, the DoPT recommended grant of maternity/ adoption leave to the petitioner keeping in mind the welfare of the child and, on consideration of the fact that the child was in her custody. The recommeudation made was, tlat, not only should the petitioner be allowed r8o days of leave as was permissible in situations dealing with maternity leave / adoption leave but that she, should also be allowed, CCL, in case, an application was made for the said purpose. It was further lndian Kanoon - http//indlankanoon.org ldocl l 2

5 Rama Pandey vs Union OI lndia & Ors. on iz July, Zois indicated that the said two sets of leave would not be adjusted from the petitioner,s leave account. The said recommendation was, however, made without prejud.ice to the poricy, rules and,/or insrructions ttrat the government may frame in that behalf in due course. 4'3 In the Iight of the aforesaid development, the counsel for both parties indicated that since the answer to the issue of law remains unarticulated (though the grievance of the petitioner may have been redressed), this court ought to deliberate upon the same and pronounce its judgment in the matter' 4'4 It is based on the stand taken by the counsels for the parties, I proceed to decide the issues raised, iu the matter. SUBMISSIONS OF COUNSETS 5' The counsel for the petitioner has equated the position of a commissioning mother to that of a biological mother who bears and carries the child till delivery. It is the submission of the learned counsel for the petitioner, that more often than not, as in this case, the commissioning parents have a huge emotional interest in the well-being of both the surrogate mother and the child, which the surrogate mother carries, albeit under a contractual arrangement. The well-being of the child and the surrogate mother can best be addressed by the commissioning parents, in particular, the commissioning mother. This object, according to the learned counsel, can only be effectuated, if maternity leave is granted to the commissioning mother. 5'r The fact that a commissioning mother has been judicially recognized as one who is similarly circumstanced, as an adoptive mother, was sought to be established by placing relianc6 on the!. judgement of the Madras High Court in the case of : K. Kalaiselvi vs Chennai port Trust, dated o4.og.2o13, passed in Wp(C) No. 8rgg/zorz. 6. Counsels for the respondents, on the other hand, while being sympathetic to the cause of the * petitioner, expressed their disagreement with the submission that maternity leave could be extended to the petitioner or female employees who are similarly circumstanced. 6.r Mr Rajappa, who appeared for respondeut no. z and. 3, in parlicular, made submissions, which can be, broadly, paraphrased as follows: (i) There is no provision under the extant rules for granting maternity leave to womed who become mothers via the surrogacy route. Therefore, in law, no entitlement to maternity leave, in these circumstances, inhered in the petitioner. (ii) The prime objective for grant of maternity leave is to protect the health and to provide safety to pregnant womed in workplace, both during pregnatrcy and after delivery. Lactating mothers, who need to breast-feed their children, fall within a "specific risk group", and hence, are given maternity leave, based on factorc which are relatable to safety and health parameters. (iii) A woman, who gives birth to a child, undergoes mental and physical fatigue and stress and, is often, subjected to confinement both during aud after preg,nancy, These circumstances do not lndlan Kanoon - http/rndlankanoon.org/doct1 25OAO7 $t 3

6 Rama Pandoy vs Union Of lndla & Ors. on 17 July,2015 impact the commissioning mother, who takes recourse to the surrogary route. Therefore, there is no justification for according maternity leave in such like cases. (iv) If leave is granted to the commissioning mother, it could set a precedent for grant of leave in future to a single male or female parent or to same sex parents as well, who may take recourse to the surrogacy route. (ivxa). Therefore, the legislature r//oula[ be the best forum for the enactment of necessary rules/ regulations to deal with such like situations, including the situation which arose in tie present case. (v) In the K. Kalaiselvi's case, the Madras High Court was interpreting Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987, pertaining to leave, made available, to female employees on adoption of a child. The court, in that case, equated the chcumstances which arise in the case of t}te adoptive mother with those which emerge in the case of a female employee, who takes recoutse to.a surrogacy route. Accordingly, Rr:le 3-A of the aforementioned regulations was interpreted to incluale a female employee who ventured to have a child via a surrogate arrangement. Such parity, in principle, was erroneous for the following reasons : Firstly, in the absence of a valid ailoption, the relevant Rule, in the instant case, does not get triggered, Secondly, such an interpretation would involve re-writing of the Rules by reading adoptive paretrt as the Commissioning Parent' REASONS 7. I have heard the learned counsels for the parties. According to me, what needs to be borne in rnind, is this : there are two stages to pregnancy, the pre-natal and post-natal stage. Biologically pregnadcy takes place upon union of an ovum with spermatozoon. This union results in development of an embryo or a foetus in the body of the female. A typical pregnancy has a duration of 266 days from conception to delivery. The pregnancy brings about physiological chalges in t}te female body which, inter alia, includes, nausea (morning sickness), enlargement of the abdomen etcl. 7,L Pregnancy brings about restriction in the movement of the female carrylng the child as it progresses through the term. In case complications arise, during the term, movement of the pregnant female may get restricted even prior to the pregnancy reaching full term. It is for tlese reasons, that maternity leave of r8o days is accorded to pregnant female employees, 7.2 Those amongst pregnant female employees, who are cotrstitutionally strong and do not face medical complications, more often than not, avail of a substantial part of their maternity leave in the period commencing after delivery. Rules and regulations framed in this regard by most organizations, including those applicable to respondent no.g, do not provide for bifurcation of maternity leave, that is, division ofleave between pre-natal and post-natal stages. 7.9 The reason, perhaps, why substantial part of the leave is availed of by the female employees (depending on tleir well-being), post delivery, is that, the challenging part, of bringing a new life into the world, begins thereafter, that is, in the post-natal period. There are other factors as well, which play a part in a pregnadt women postponing a substantial part of her maternity leave till after delivery, such as, family circumstances (including the fact she is part of a nuclear family) or, the health of the child or, even the fact that she already has had successful deliveries; albeit without sufecient time lag between them. lndlan Kanoon - htf'/ilndlankanoon.org/doc l 4

7 Rama Pandey vs Union Of lndia & Ors. on 1Z July, 20l5 8' Thus' it is evident that except for the physiological changes and Dor1and,s Illustrated Medical Dictionary, 3oth Edition, saunders Publication difficulties, a]l other challenges of child rearing are common to all female employees, irrespective of the manner, she chooses, to bring a child into this world. 9' But the law, as it stands today, and therefore, the rules and regulations as framed by most organisations do not envisage attainment of parenthood. via the su:rofacy route. 9'r It is not unknown, and there are several such examples that legislatures, usually, in most sifuations, act ex-post facto. Advancement in science and change in societal attitudes, often raise issues, which require courts to infuse fresh insight into existing Iu*. rni, legal technique, if you like, is often alluded to as the "updating principre". iimply put, the court by using this principle, updates the construction ofa statute bearing in mind, inter alia, the current norrns, changes in social attitudes or' even advancement in science and technology. The principle of updating resembles another principle which the courts have referred to as the "dynamic proc"ssi.rg of an enactment',. The former is described in Bennion on statutory Interpretation at page g9o in the following manner "".4'n updating construction of an enactrneut may be defined as a construction which takes account of relevant changes which have occurred since the enactment was originally framed but does not alter the meaning of its word.ing in ways which do not full within the principles originally envisaged by that wording. updating construction :-i resembles so-calred dynamic interpretation, but insisis that the updating is structured rather than at large. This structuring is directed to ascertaining the legal meaning of the enactment at the time with respect to which it fal]s to be applied. The structuring is framed by reference to specific factors developed by the courts whi"eh s. are related to changes which have occurred (r) in the mischief to which Ehe enactment is directed, (z) in the surrounding law, (3) in sociar conditions, (4) in technology aad medical science, or (S) in the meaning of words...,,...1 9'z The updating principle on account of developmeut of medical science and technique was applied in the following case : R vs. Irelaad, tt99gl AC L47' 9'3 Similarly, change in social conditions have persuaded courts to apply the updating construction principle to inject contemporary meaning to the word.s and expressions used. in the existing statute. see: williams and G]yn's Barkvs. Bolaad, [r9gr] AC 4g7 arpage5n placetum'd, andrvs. D, [1984] ACVB. 9'4 In respect of dynamic processing, the following observations in Bennnion on Statutory Interpretation,5th Edition, at page 5oz, being apposite, are extracted hereinafter :- "..FewActs remain for very long in pristine condition. They are quickly subjected to a host of processes. Learned commentators dissect them. Officials in administering them develop their meaning in practical terms. courts pronounce on them. lndlan Kanoon - htf /,{ ndlankanoo n.org/doc/l 25g6571 S/ 5

8 Rama Pandsy vs Unlon Of lndia & Ors. on 17 July, 2015 Donaldson J described the role ofthe courts thus : 'The duty of the Courts is to ascertain and give effect to the will of Parliament as expressed in its enactrnents. In the performance ofthis duty the Judges do not act as computers into which are fed the statutes and the rules for the construction of statutes and from whom issue forth the mathematically correct answer. The interpretation of statutes is a craft as much as a science and the judges as craftsmen, select and apply the appropriate rules as the tools oftheir trade. They are not Iegislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing. When practitioners come to advise upon the legal meaning, they need to take account of all this. The Act is no longer as Parlia-rnent enacted it; it has been processed.." (emphasis is rnine) 9.S The fact that this is a legitimate interpretative tool, available to courts, is quite evident upon perusal of the ratio of the following judgements' 9.6 A classic example of application of the upd.ating of constnrction principle, is the judgement, in the case of Fitzpatrick vs Sterling Housing Association Ltd, 1999 (+) A11 E.R. 7o5, where the word 'family' was read to include two persons of same sex who were cohabitating and living together for a long period of time with a mutual degree of inter-dependence. g.z This is an interesting case where the court while applying the afore- stated principle interpreted the meaning of tle word,'family', by having regard to the prevalent social habits and attitudes. In this case, the plaintiff, who was the appellant before the House of Lords, had approached the court for protection from eviction on the ground that he had lived in a stable relationship with the original tenant of the same sex' who had since then died. The defendant / respondent (i.e. landlord) declined to recognize him as a tena:rt as he was neither the wife nor tle husband of the original tenant. The courts below had accepted the plea of the respondent/defendant (i,e. the landlord). The House of Lords while allowing the appeal by a majority of B:z made the following apposite observatious. The discussion thus veered around whether the appellant/plaiutiffwas the spouse of the original tenant. "...It is not an enswer to the problem to assume (as I acceptmaybe correct) thatif in rgzo people had been asked whether one person was a member ofanother sartre-sex person's family the answer would have been "No". That is not the right question. The first question is what were the characteristics of a family in the rgzo Act and the second whettrer two same-sex partners can satisff tlose characteristics so as today to fall within the period "family". An alternative question is whether ttre word ufamily" in the rgzo Act has to be updated so as to be capable ofincluding persons who today would be regarded as being of each other's family, whatever might have been said in See : R v Ireland [rgs8] AC r47,1s8, per Lord Steyn; Bennion, Statutory Interpretation, 3rd ed (rsgil, p 686 and Halsbury's taws of England, 4th ed reissue, vol 44 (r) (r99s), p 9o4, parat47b.....it seems to be suggested that the result which I have so far indicated woultl be cataclysmic, In relation to this Act it is plainly not so. The onus on one person lndlan Kanoon - http/nndiankanoon.orgr'doc.i i

9 Rama pandsy vs Union O, lndia & Ors. on 17 Juty,2015 claiming that he or she was a member of the same-sex original tenant,s family will involve that persou establishing rather than merely assertiog th" o.."..ary indicia of the relationship. A transient superficial relationship will not do even if it is intimate. Mere cohabitation by friends as a matter of convenience win not do. There is, in any event, a minimum residence qualification; the succession is limited to that of the original tenaut. Far from being cataclysmic it is, as both the judge in the country court and the court ofappear appear to recognise, and as I consider, in accordance with contemporary notions of social justice, In other statutes, in other contexts, the same meaning may or not be the right one. If a narrower meaning is required, so be it. It seems also to be suggested that such a result in this statute undermines the traditional (whether religious or social) concepts of marriage and the family. It does nothing of ttre sort. It merely recognises that, for the purposes of this Act, two people of the same sex can be regarded as having estabrished membership of a family, one of the most significant of human rerationships which both gives benefits and. imposes obligations.." [Also see : Ghaidan v. Mendoza, zooz (4) A]r E.R. 116z; Goodwin vs u.k., (zooz) z FCR 577; Bellinger vs Bellinger, (zooz) r AI E.R. 3rr (dissenting judgment of Thorpe u at page sgs) and a vs West Yorkshire police, zoo+ (S) A[ E.R- r+s]. 9'8 A constitution bench of our Supreme Court iu the case of State (through CBI) Vs. S,J. choudhary, (tgg6) z scc 428 applied the updating construction principle when it was faced with an issue whetler the opinion of a typewriter expert would be admissible in evidence in view of the lauguage employed in Section 45 ofthe Indian Evidence Act, LBTz(in short the Indian Evidence Act)' The objection taken by the accused in a criminal proceeding, which was sustained right up to the High Court was based upou observations in an earlier jud.gment of the Supreme Court in Hanumantvs' State of Madhya Pradesh, r95z SCR rogr that the opidon of a typewfiting expert was not admissible' The Constitution Bench of the Supreme Court ruled otherwise and while doing so, adverted to the updating construction principle by reading into the word., 'science, which appeared llq alongside the expression, 'handwriting' to includ.e a person who was an expert in typewriters. The following observations of the supreme court being apposite are extracted. hereinafter :- ".'ro. statutory Interpretation by Francis Bennion, second edition, secfion zgg with the heading "Presumption that updating construction to be given', states one of the rules thus: " )oor loo< roo< It is presumed that parliament intends the court to apply to an ongoing Act a construction t.hat continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). while it remains law, it is to be [eated as always speaking. This means that in its application ou any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. :oor loo< >oo< In the comments that follow it is pointed out that an ongoing Act is taken to be always speaking. It is also, further, stated tlus: lndlan Kanoon - htp/fi ndlankanoorlorg/doc/l2536sz1 5/ 7

10 Rama Pandey vs Union Ot lndia & Ors. on 17 July,2015 "In construing an ongoing Act, the iuterpreter is to presume that Parliament intended the Act to be applied at any future time iu such a way as to give effect to the true original intention. Accordingly the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions, technology, the meaning of words, and other matters. Just as the US Constitution is regarded as 'a living Constitution', so an ongoing British Act is regarded as 'a living Act'. That today's constructiod involves the supposition that ParliameDt was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drajter will try to foresee the future, and allow for it in the wortling. loo( x:a( )oo( An enactment of former days is thus to be read today, in the light of dynamic processing received ovel the yeafs, with such modification of the current meaning of its language as will now give effect to the original legislative intentiou. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials." 11. There cannot be any doubt that the Indian Evidence Act, 1872 is, by its very nature, an 'ongoing Act.' 12. It appears that it was only in 1874 that the first practical typewriter made its appearance and was marketed in that year by the E. Remington and Sons Company which later became the Remington typewriter - Obviously, in the Indian EvidenceAct enacted in r87z typewriting could not be specifically mentioned as a means of writing in Section 45 of the Evidence Act. Ever since then, technolory has made great strides and so als6 the technolory of manufacture of typewriters resulting in common use of typewriters as a prevalent mode of writing. This has given rise to development of the bralch of science relating to examination of questioned typewriting..." (emphasis is mine) 9.9 Similarly, t}re Supreme Court in two other cases recognised the progress of science and technolory by bringing in line, the scope and meaning of the words and expressions used in existing statutes, with current norms and usage' The first case is the judgment delivered i:r Senior Elec{ric Inspector vs Iaminarayan Chopra, (rg6z) g SCR 146, where it held, that the expression 'telegraph line'in the Indian Telegraph Act, r88s would include a wireless telegraph having regaril to ttre change in technology. 10. The second case is the judgment in M/s. Ia.roni Video Theatres and Ors. Vs. State of Haryana and Ors., (rsss) S SCC 7rS. In this case, the definition of the word'cinematograph'as contained in Section z(c) of the Cinematograph Act, r95z was held to cover video cassette recorders aad players for representation of motion pictures on television screen. 1o.1 Also See State of Maharashtra Vs. Dr. Prafu] B. Desai, (zoog) 4 SCC 6or. lndlan Kanoon - I

11 Bama Pandey vs Union Ot lndta & Ors. on 17 July,2O15 11' with the advent of New Reproductive Technologies (NRT) or what are also known as Assisted Reproductive Technologies (ART), (aftel the birth of the first test-tube baby Louise Joy Brown, in 1978), there has been a veritable explosion ofpossibilities for achieving and bringing to term a preg'ancy. It appears that in future one wourd have three kinds of mothersi (i) a genetic mother, who donates or sells her eggs; (ii) (rii) a surrogate or natal mother, who carries the baby; a sociat mother, who raises the chitd.2 and t1't India's first test-tube baby Kanupriya alias Durga, brought to fore the use of similar technology in India' The reproduction of children by NRTs or ARTs, raises several moral, Iegal and ethical issues. One such legal issue arises in the instant case. rr'z Though the science proceeded in this direction ia the late r97o, the practice of having children via surrogacy is, a more recent phenomena. The relevant ]eave rules were first framed in tgtz; to which amendments have been mad.e from time to time. while notions have changed vis-a-vis parenthood (which is why provisions have been incorporated for paternity leave; an aspect which I will shortly advert to), ttrere appears to be an inertia in recognisinj that motherhood can be attained even via surrogacy' rr'3 Rule 43 implicitly recognises that there are tu/o principal,";r";j; maternity leave is accorded. First, that with pregnancy, biological changes see: Feminisi Perspectives on [aw, Chapter 4 : Facilitating Motherhood, pages rzr-123 gccur. seco1d, post chililbirth "multiple burdens" follow. (see : c-366/99 Griesmar, [zoor] ECR ) 11.4 Therefore, if one were to recognise even the latter reason the commissioning mother, to my mind, ought to be entitled to maternip leave It is clearly foreseeable that a commissioning mother needsto bond with the child and at times take over the role of a breast-feeding mother, immediately after the delivery of the child.?.: zr 11'6 In sum, the commissioning mother would become the principal care giver upou t1e birth of child; notwithstanding the fact that child in a given situation is bottle-fed. rr'7 It follows thus, to my mind, that the commissioning mother's entitlement to maternity Ieave cannot be denied only on the ground that she did not bear the child. This is dehors the fact that a commissioning mother may require to be at the bed side of the surrogate mother, in a given situation, even at the pre-natal stage; an aspect I have elaborated. upon in the latter part ofmy judgment. rr.8 The circumstances obtaining in *re present case, however, indicate that the genetic father made use of a donor egg, which theu, was implanted in the surrogate mother. rr'9 The surrogate mother in t}is case had no genetic connection with the childr.en she gave birth to. The surrogate mother however, carried the prepancy to term. rz. Undoubtedly, the fact that the surrogate mother carried the pregnancy to full term, involved physiological changes to her body, which were not experienced by the commissioning mother but, lndlan Kanoon - http//lndlankanoon.org/doc/i / s

12 _l Rama Pandey vs Union Of lndia & Ors. on 17 July, 2015 from this, could one possibly conclude that her emotional involvement was any less if, not more, than the surrogate mother? rz.r Therefore, while the submission advanced by Mr Rajappa that maternity Ieave is given to a female employee who is pregnant, to deal with biological changes, which come about with pregnancy, and to ensure the health and safety, both of the mother and the child, while it is in her womb, is correc1 it is, I am afraid, an uni-dimensional argument, offered to explain the meaning of the term "maternity", as found incorporatecl in the extant nrles. tz.2the rules as framed do not restrict the grant of leave to oniy those female employees, who are themselves pregnant as would be evident from the discussion and reasons set forth hereafter. For this purpose, in the first instance, I intend to examine ttre scope and effect of the Rules to the extent relevant for the purposes of issues raised in the writ petition The word 'maternity' has not been defined in the Central Civil Services (Leave) Rules, r97z (in short the Leave Rules), which respondents say are applicable to the petitioner. rz.4 Rule 49, which makes provision for maternity, for the sake of convenience, is extracted hereinbelow " Maternity Leave : (r) A female Government servant (including an apprentice) with less than two surviving children may be granted maternity leave by an authority competent to grant leave for a period of (r8o days) from the date of its commencement. (z) During such period, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. NOTE :- In the case of a person to whom Employees' State Insurance Act, tg48 $4 of 1948), applies, the amount of leave salary payable under this rule shall be reduced by the amount ofbenefit payable under the said Act for the corresponding period. (3) Maternity leave not exceeding 45 days may also be granted to a female Government servant (irrespective of the number of surviving children) during the entire service of that female Government in case of miscarriage including abortion on production of medical certificate as laid down in Rule 19: 'Provided that the maternity leave granted and availed of before ttre commencement of the CCS(Leave) Amendment Rules, 1995, shall not be taken into account for tle purpose of this sub-rule'. (+) (a) Maternity leave may be combined with leave of any other kind. (b) Notwithstanding the requirement of production of medical certificate cantninsd ia sub-rule (r) of Rule go or sub-rule (r) of Rule 91, leave of the kind tlue and admissible (including commuted leave for a period not exceeding 6o days and leave not due) up to a maximum of one year may, if applied for, be granted iu continuation of maternity lndlan Kanoon

13 leave granted under sub-rule (r). Bama pandey vs Unlon Of lndta & Ors. on 1Z July, G) Maternity leave shall not be debited against the reave account...,, rz'5 A perusal of Rule 43 would show that a female employee including an apprentice with less than two suwiving children, can avail of maternity leave for r8o days from the date of its commencement. sub-ruie (3) of Rule 43 is indicative of the fact that where the female employee has suffered a miscarriage, including abortion, she can avail of maternityleave not exceeding 45 days. Importantly, clause (a) of sub-ru]e (4) of Rule 48, states that maternity leave can be combined with Ieave of any otherkind' Furt}ermore, under clause ft) of sub-rule (+) such a female employee is entitled to leavl of the kind referred to in Rule 3r(r) notwithstanding the requiremerrt to produce a medical certificate, subject to a maximum of two years, if applied for, in continuation of maternity leave granted to her, sub- rule (s) of Rule 43 states that, maternity Ieave shall not be debited against leave account. 13' There are three other Rules to which I would like to refer to. These are Rules 43-A, 43-AA and l3'r Rule +g-as deals with paternity leave available to a male employee for the defined period, where " his wife" is confined on account of child birth. The said. RuIe allows a male employ"", iucluding an apprentice, with less than two surviving children, to avail of 15 d.ays leave during the confinement of his wife for child birth, that is, up to 15 days "before" or "up to 6 months' from the date of delivery of the child. r3.z Sub-rule (+) of Rule 43-A makes it clear that if paternity leave is not availed of within the period specified above, such leave shall be treated as lapsed. ;i r 4'3 Like in the case of a female employee, paternity leave can be combined with leave of any otler kind, and the said leave is not debited against the male employee's leave account. This position emanates upon reading of sub-rule (3) and sub-rule (4) of Rule 43-A above. g.4 Rule 4-AA4 deals with pateruity leave made available, to a male 43-A. paternity leave: J...,F (r) A male Government servant (including an apprentice) with less than two surviving children, may be granted Paternity Leave by an authority competent to grant leave for a period of r5 days, during the confinement of his wife for childbirth, i.e., up to 15 days before, or up to six months from the date ofdelivery ofthe child. (z) Durins such period of 15 days, he shall be paid leave salary equal to the pay drawn immediately before proceeding ou Ieave. (S) The paternity Leave may be combined with leave of any other kind. (+) The paternity leave shall not be debited against the Ieave account. (5) If Paternity Leave is not availed ofwithin the period specified in sub-rule (r), such leave shall be heated as lapsed. lndlan Kanoon - ffip//indlankanoon.org/dodl / 1l

14 Rama Pandey vs Union Of lndia & Ors. on 17 July' 2015 NOTE:- The Paternity Leave shall not normally be refused under any circumstaaces.l 43-AA. Paternity Leave for Child Adoption. - (r) A male Government servant (including an apprentice) with less than two surviving children, on valid adoption of a child below the age of one year, may be granted Paternity I ave for a period of r5 days within a period of six months from the date of valid adoption. (z) During such period of 15 days, he shall be paid leave salary equal to t}te pay drawn immediately before proceetling on leave' (g) The paternity leave may be combined with leave of any other kind. (+) The Paternity Leave shall not be debited against the leave account. employee, for the defined period, albeit from the date of "valid adoption". t3.5 The aforementioned rule is pari materia with Rule 4g-A, in all otler a.spects; the only tlifference being that the paternity leave of 15 days available to the male employee should be availed of within 6 montls from ttre date ofa valid adoption. 6.6 Under the Leave Rules, a female employee is also entitled to leave if she were to adopt a child as against taking recourse to the surrogacy route. Iu other words, there is a provision in the Leave Rules for Child Adoption Leave. The relevant provision in this behalf is made in Rule 43-B5' G) If Paternity leave is not availed of within the period specifietl in sub-rule (r) sueh leave shall be treated as lapsed. [Note r]: - The Paternity teave shall not normally be refused under any circumstances.l [Note z]: - "Child" for the purpose of this rule wiii include a child taken as ward by the Government servant' under the Guardians and Wards Act, 1890 or the persoual law applicable to that Governmeut servalt, provided such a ward lives with the Government servant ald is treated as a member of the family and provided such Government servant has, through a special will, conferred upon ttrat ward the same status as that of a natural born child.] 4g-8. Leave to a female Government servant on adoption of a child: (r) A female Government servant, with fewer than two surviving children, on valid adoption of a child below the age of one year may be granted child adoption leave, by an authority competent to grant leave, for a period of [r8o days] immediately after the date of valid adoption. (z) During the period of child adoption leave, she shali be paid leave salary equal to the pay drawn immediately before proceeding on leave. (S) (a) Chilil atloption leave may be combined with leave of any other kind. (b) In continuation of the child adoption leave granted under sub-rule (r), a female Government servant on valid adoption of a child may also be granted, if applied for, Ieave of the kind due and admissible (including leave not due and commuted Ieave not exceeding 6o days without production of medical certificate) for a period upto one year reduced by the age of tle adopted child ou the date ofvalid adoption, without taking into account child adoption leave. lndian Kanoon - hitp://lndlankanoon.org/doc/ / 12

15 Rama Pandey vs Union Ot lndia & Ors. on 17 July,2015 Provided that this facilip shall not be admissible in case she is already having two surviving children at the time of adoption. (+) Child adoption leave shall not be debited against the leave account.l [Note: - "child, for the purpose of this rule will include a child taken as ward by the Government servant, under the Guardians and wards Act, r89o or the personal Law applicable to that Government servant, provided such a ward lives with the Government servant and is treated as a member of the family and provided such Governmeut servant has, through a special will, conferred upon that ward the same status as tlat of a natural born child.l The said Rule was substituted by notification dated 31' and was published in the gazette of India on z7,o4.zoo6: to take effect from 3r.o3.zoo6. It appears that prior to the insertion of Rule 43-8, the said ruie was numbered as 43-A and was inserted vide notification dated 22.Lo.Lggo, which was published in the gazette of India, on 26.ol.lggt. The said notification was, however, substituted by another notification dated o4,o1lggzt which in tum was published in the gazette of India on r3'7 Rule 43-8, which enables the female employee with fewer than two surviving chilfuen, to avail of child adoption leave for a period of r8o days affixes, inter alia, a condition that there should be in place a "valid adoption" of a child below the age of one year. The period of rgo days commences immediately after the date of valid adoption. [see sub-rule (r) of Rule 43-B] 13.g clause (a) of sub-rule (g) of Rule 43-B enables a female employee to combine child adoption leave with leave of any other kind. Clause (b) of sub-rule (3) of Rule 43-8, entitles a female employee in continulfion of child adoption leave granted under sub-rule (r), on valid adoption of a child to apply for leaveof the kind due and admissible (including leave not due and commuted leave not exceeding 6o days without production of medical cerlificates) for a period up to one year, albeit reduced by the age of adopted child on the date of "valid adoption". In otler words, this sub-mle allows a female employee to apply for any other Ieave which is tlue and admissible in ad.dition to child adoption leave. There is, however, a proviso addetl to the said sub-rule which prevents a female employee to avail of 'Such leave if she already has two surviving children at the time of adoption. r3.9 As in the other rules, child adoption leave is not to be debited against the leave account. 14. Thus' a reading of Rule 43 would show that while it is indicated in sub-rule (r) as to when the period of leave is to commence, that is, from the date of maternity; the expression 'maternity'by itself has not been defined. As a matter of fact, sub-rule (g) of RuIe 43 shows that if the pregnancy is not caried to filll term on account of miscarriage, which may include aborlion, a female employee is entitled to leave not exceeding 45 days. 15. There are tliro ways of looking at Rule 43. One, that the word, 'maternity'should be given the same meaning, which one may argue inheres in it, on 4 r'snding of sub-rule (S) of RuIe 43; which is the notion of child bearing. The other, that the word "maternity", as appearing in sub-rule (r) of Rule 43, with advancement of science and technolory, should be given a meaning, which includes within it, the concept of motherhood attained via the surrogacy route. The latter appears to be more to8ical if, the Ianguage of Rule 43-A, which deals with paternityleave, is contrasted with sub-rule (r) of Rule 43. Rule 43-A makes it clear that a male employee would get $ days of leave "during the lndlan Kanoon - http//lndlankanoon.org/doc/1 25gOS71 S/,,3

16 Hama Pandey vs Union Ot lndia & OIS. on 17 July,2015 confinement of his wife for child birth", either 15 days prior to *te event, or thereafter, i.e. after child birth, subject to the said leave being availed of within 6 months of the delivery of the child' r5.r There is no express stipulation in sub-rule (r) of Rule 43 to the effect that the female employee (applyrng for leave) should also be one who is carrying the child. The said aspect while being implicit in sub-rule (r) of Rule 43, does not exclude attainment of motherhood via surrogacy. The attributes such as "confinement" of the female employee during child birth or the conditionality of division of leave into periods before and after child birth do not find medtiod in Rule 4g(r)' 15.2 Having regard to the aforesaid position emanating upon reading of the Rules, one is required to examine t}te tenability of ttre objections raised by the respotrdents. 16. The argument of the respondents, in sum, boiis down to this: that the word'maternity'can be attributed to only those female employees, who conceive and carry the child during preguancy. In my view, the argument is partiatly correct, for the reasou that the word 'maternity' pertains to the 'character, condition, relation or state of a mother'6. In my opinion, where a Black's Iaw Dictionary, 6th Edition at page gz7 suffogacy arrangement is in place, the commissioning mother continues to remai.u the legal mother of the child, both iluring and after the pregnancy. To cite an example : suppose on account of a disagreement between the surrogate mother and the commissioning parents, the surrogate mother takes a unilateral decision to terminate the pregnancy, albeit within the period permissible in law for termination of pregnancy - quite clearly, to my mind, the commissioning parents would have a legal right to restrain the surrogate moiher from taking any such action which may be detrirnental to the interest of the child. The legal basis for the court to entertain such a plea would, in myview, be, amongst otlers, ttre fact that the commissioniag mother is the legal mother ofthe child. The basis for reaching such a conclusion is that, surrogacy, is recognized as a lawful agreement in the eyes of law in this country. [See Baby Manji Yamada v, Union of India, (zoo8) ra SCC In some jurisdictions though, a formal parental order is required after child birth. r6,t Therefore, according to me, maternity is established vis-a-vis the commissioning mottrer, once the child is conceived, albeit in a womb, other than that of tle commissioning mother. 16.z It is to be appreciated that Matemity, in law a:rd / or on facts can be established in any one of the three situations r First, where a female employee herself conceives and carries the child. Second, where a female employee engages the services of another female to conceive a child wittr or without tle genetic material being supplied by her and / or her male parbrer. Third, where female employee adopts a child. 16,3 In so far as the third circumstance is concerned, a specific rule is available for availing leave, which as indicated above, is provided for in Rule 43-B. In so far as the first situation is concerned, it is covered under sub-rule (r) of Rule 43, However, as regards the second situation, it would necessarily have to be read into sub-rule (r) of Rule 49. L6.4To confine sub-rule (r) of RuIe 48 to only to that situation, where the fema-le employee herself carries a child, would be turning a blind eye to the advancement that science has made in the meanwhile. On the other hand, if a kuncated meaning is given to the word 'maternity', it would result in depriving a large number of women of lndian Kanoon - irtf/indlankanoon.org/dod 'l 5/ 't4

17 Rama Pandey vs Union Of lndla & Ors. on t 7 July, 2015 their right to avail of a vital service benefit, only on account of the choice that they would have exercised in respect ofchild birth. r7' The argument ofthe respondents that the underlying rationale, for according maternity leave (which is to secure the health and safety of pregnant female employee), would be rendered nugatory - to my mind, loses sight of the following: (i) First, that entitlement to leave is aa aspect different from the right to avail leave. (ii) Secontl, the argumeut centres, substantially, around, the interest of the carrier, and in a sense, gives, in relative terms, lesser weight to the best interest of the child. r7.r In a surrogacy arrangement, the concern of the commissioning parents, in particular, the commissioning mother is to a large extent, focused on the child. carried by the gestational mother. There may be myriad situations in which the interest of the child, while still in the womb of the gestational mother, may require to be safeguarded by the commissioning mother. To cite an example, a situation may arise where a commissioni:rg mother may need to attend to the surrogate/ gestational motler during the term of pregnancy; because the latter may be bereft of the n...rrury wherewithal. The lack of wherewithal could be of : financial nature (the arrangement in place may not suffice for whatever reasons), physical condition or emotional support or even h combination of one or more factors stated above. In such like circumstances, the commissioning mother can function effectively, as a care-giver, only if, she is in a position to exercise the righi to takdiinaternity leave. To my mind, to curtail the commissioning mother's entitlement to leave, on the gibund that she has not couceived the child, would work, both to her detimeut, as well as, that of the child. 18. The likelihood of such right, if accorded to the commissioning mother, being rfiisused chn always be curtailed by the competent Ieave sanctioning authority. '.nt '='$. r8'r At the time of sanctioniug Ieave the competent authority can always seek information with regard to circumstances which obtain in a given case, where application for grant of maternity leave is made. The competent authority's scrutiny, to my mind., would be keener and perhaps more detailed, where leave is sought by the commissioning mother at the pre-natal stage, as against post-natal stage. If conditions do not commend that leave be given at ttre pre-natal stage, then the same c rn be declined. r8,z In so far as post-natal stage is concerned, ordinarily, Ieave cannot be declined as, under most surrogacy arrangements, once the child is born, its custody is immediately handed over to the commissioning parents. The commissioning mother, post the birth of the child, would, in all probability, have to play a very crucial role in rearing tle child. t8.3 However, these are aspects which are relatable to the time and the period for which materuity leave ought to be granted, The entitlement to leave cannot be denied, to my mind, on this ground, 19. In this context, I may only refer to a judgement of the Labour Court of South Africa, in Durban in MIA v. state Information Technolory Agency (Pty) Ltd,, (Dgtz/zorz) [zor5] zn-cdzo (dated: z6 March zor5), The applicaut before the court, who was a male employee, challenged the refusal by lrdlan Kanmn - http //indlankan oon.org/doc/ / 15

18 Bama Pandey vs Union ol India & Ors. on 17 July, 2015 his employer to glant him rnaternity leave on the ground that he was not the biological mother of the child under the surrogacy agreement. r9.r The principal ground of challenge was that such refusal constituted unfair discrimination on the grounds of gender, sex, family responsibility and serual orientation, as ptovidqd in Section 6r of the Employment Equity Act (Act SS of tggs). 19,2 The provision pertaining to maternity leave, as adverted to in the judgement, was contained in Section z5 of the Basic Conditions of Employment Act (Act ZS of tggz). The relevant part, as extracted in the judgement, is set out hereineblow: "..(t). An employee is entitled to at least four consecutive montls maternity leave. (z). An employee rnay commence maternity leave - a. at any time from four weeks before ttre expected dale of birt]r, unless otherwise agreed; or b. x x x x " r9.3 The common case between the parties was that the respondent- employer's policy was similar to the provisions of the Basic Conditions of the Employment Act. The respondent-employer policy provided "paid maternity leave of a maximum of four months", and that, the said leave was to be taken "four weeks prior to the expected date ofbirth or at an earlier date" In defencen the argument of the respondent-employer was that, its policy was not discriminatory, and therefore, it rvas argued that the word 'maternity' defined the character of the leave viz. that it was a right which was to be enjoyed only by fernale employees. In the pleadings, the respondent-employer averred that its maternity leave policy was specifically designed to cater to the foilowing: ",..to cater for employees who give birth... based on an understandiug that pregnancy and childbirth create an undeniable physiological effect that prevents biological mothers from working during portions of the pregnancy and during the post-partum period. Thus at least ro weeks ofmaternity leave benefits have been introduced to protect birth mothers from an earning interaction due to the physical incapacity to work immediately before anc, afler childbirth.." r9.5 The ruling of the Court sireds some light, in my view, on the issue at hand. The observations made in the judgment being relevant, are extacted hereinbelow. "...[r3] This approach ignores the fact that the right to maternity leave as created in the Basic conditions.of Employment Act in the current circumstances is an entitlement not linked solely to the welfare and health of the child's mother but must ofnecessity be interpreted to and take into account the best interests ofthe child. Not to do,so would be to ignore the BilI of Rights in the constitution of the Republic of South Africa and the ChiJdren's Act. Section z8 of the Constitution provides: lndlan Kanoon - http'//indlankanoon.org/doc,!1253ri57 15t 16 _l

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